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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

HILDA MURPHY v. STUART SIMMS, et al.

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CIVIL NO. L-98-962

MEMORANDUM

Before the Court is the partial Motion to Dismiss and Motion for Protective Order filed by the defendants State of Maryland, State Department of Public Safety and Correctional Services (DPSCS), Stuart Simms, William Sondervan, Richard Lanham, Frank Sizer, Sewall Smith, Mitchell Franks, and Eugene Nuth (the "state defendants"1). This case concerns sexual

harassment allegedly suffered by the plaintiff, Hilda Murphy, during her employment as a guard at DPSCS. The essential

factual allegations of Ms. Murphy's claims were outlined in this Court's Memorandum and Order of February 5, 1999, and will not be repeated here. On January 6, 2000, the Court (Chief Judge Motz) granted the plaintiff leave to amended her complaint. defendants The state

answered the complaint in part and moved to For the following reasons, the Court will,

dismiss in part.

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Defendant Gary Logan is not a party to this motion.

by separate Order, GRANT the defendants' motion to dismiss and DENY AS MOOT the Motion for a Protective Order. I. Legal Standard Ordinarily, a Complaint should not be dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) unless it appears beyond all doubt that the plaintiff can prove no set of facts in support of his claim that entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46

(1957); Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995). The liberal pleading requirements of Rule 8(a) demand only a "short and plain" statement of the claim. In evaluating such

a claim, the Court must accept as true all well-pleaded allegations of fact and view them in the light most favorable to the plaintiff. 421-22 (1969). II. A. Analysis Counts One, Two and Three Counts I, II, and III of the amended complaint charge the defendants with sexual harassment and retaliation in violation of Title VII. Defendants Simms, Lanham, Sondervan, Sizer, See Jenkins v. McKeithen, 395 U.S. 411,

Smith, Franks, and Nuth have moved to dismiss these three counts against them, asserting that they cannot be liable for Title VII violations under Lissau v. Southern Food Service,

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Inc, 159 F.3d 177 (4th Cir. 1998).

Plaintiff disagrees,

arguing that (i) at least some of the defendants must have approved of defendant Logan's harassment of the plaintiff, thus rendering their actions "delegable," and making the defendants individually liable, and (ii) alternatively, the defendants are being sued in their official, rather than individual capacities. The Court finds the plaintiff's first theory without merit. Lissau holds unambiguously that "supervisors are not

liable in their individual capacities for Title VII violations." 159 F.3d at 181. All individual defendants must

therefore be dismissed in their individual capacities. Lissau did not address the question of proceeding against individuals under Title VII in their official capacities. Fourth Circuit has, however, assumed that such an action is possible. See Causey v. Balog, 162 F.3d 795, 801 n.1 (4th The

Cir. 1998) (citing Alvarado v. Board of Trustees, 848 F.2d 457, 460-61 (4th Cir. 1988)). Actions against individuals in

their official capacities are normally permitted when the actual employing entity is immune from suit, and a suit against the individual is equivalent to the suit against the entity. See, e.g., Alvarado, 848 F.2d at 460-61.

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In the instant case, the State and DPSCS are not moving to dismiss Counts I, II and III against them. There is

therefore no need to proceed against any of the individual defendants in their official capacities. Counts I, II, and

III will be dismissed against Defendants Simms, Sondervan, Smith, Lanham, Sizer, Franks, and Nuth. B. Count Four Count IV alleges that Defendants Lanham, Smith, Sondervan, Franks, Sizer, and Nuth infringed upon the plaintiff's constitutional rights in violation of 42 U.S.C.

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